FIRST AMENDMENT
to that certain
SECOND AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT
This FIRST AMENDMENT (this "AMENDMENT"), dated as of April 29, 2005, to
that certain Second Amended and Restated Credit and Security Agreement, dated as
of January 2, 2004 (as modified and supplemented and in effect from time to
time, the "CREDIT Agreement"), among Columbus XxXxxxxx Corporation, a
corporation organized under the laws of New York (the "BORROWER"), Larco
Industrial Services Ltd., a business corporation organized under the laws of the
Province of Ontario, Columbus XxXxxxxx Limited, a business corporation organized
under the laws of Canada, the Guarantors from time to time party thereto, the
Lenders from time to time party thereto (collectively, the "LENDERS"), Bank of
America, N.A., as Administrative Agent for such Lenders (the "AGENT") and as
Issuing Lender.
WHEREAS, the Borrower has requested that the Agent and the Lenders agree to
amend certain of the terms and provisions of the Credit Agreement, as
specifically set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall have
the meanings assigned to such terms in the Credit Agreement.
2. AMENDMENTS TO DEFINITIONS. Section 1.1 of the Credit Agreement is hereby
amended as follows:
(a) The second table contained in the definition of "Applicable Margin" is
hereby deleted and replaced with the following:
--------------------------------------------------------------------------------------------------
APPLICABLE MARGIN (% PER ANNUM)
--------------------------------------------------------------------------------------------------
------------- ---------------------- -------------------- ------------------- --------------------
LEVEL SENIOR LEVERAGE RATIO LIBOR RATE LOANS BASE RATE LOANS UNUSED FEE
------------- ---------------------- -------------------- ------------------- --------------------
I =>3.00:1 2.00% 0.75% 0.375%
------------- ---------------------- -------------------- ------------------- --------------------
II => 2.50:1 and <3.00:1 1.75% 0.50% 0.25%
------------- ---------------------- -------------------- ------------------- --------------------
III => 2.00:1 and <2.50:1 1.75% 0.50% 0.20%
------------- ---------------------- -------------------- ------------------- --------------------
IV < 2.00:1 1.50% 0.25% 0.20%
------------- ---------------------- -------------------- ------------------- --------------------
(b) The definition of "Approved Restructuring Charges" is hereby deleted
and replaced with the following:
""APPROVED RESTRUCTURING CHARGES" means cash restructuring
charges incurred by the Borrower and/or its Subsidiaries and
approved by the Agent up to an amount not to exceed $750,000 in
the aggregate in any fiscal year.
(c) The definition of "Agent" is hereby deleted and replaced with the
following:
""AGENT" means Bank of America, N.A. in its capacity as
administrative agent for the Lenders hereunder."
(d) The definition of "Agent's Office" is hereby deleted and replaced with
the following:
""AGENT'S OFFICE" means 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000."
(e) The definition of "Cash Management Bank" is hereby deleted and replaced
with the following:
""CASH MANAGEMENT BANK" means Bank of America, N.A."
(f) The definition of "Domestic Borrowing Base" is hereby amended by (i)
deleting the period at then end of clause (d) contained therein, (ii)
substituting in lieu thereof the text "; PLUS" and (iii) adding the following
new clause (e) at the end thereof.
"(e) the lesser of (i) $15,000,000 and (ii) the Term Loan
Borrowing Base, PLUS"
(g) The definition of "Domestic Borrowing Base" is hereby further amended
by deleting the second sentence contained in the last paragraph of such
definition and substituting in lieu thereof the following:
"Notwithstanding anything to the contrary set forth herein, the
Agent may in its sole discretion at any time and from time to
time, subject to subsections 11.2(b)(xi)) and (b)(xii), adjust
the percentages of Eligible Accounts, Eligible Fixed Assets or of
Eligible Inventory, change eligibility criteria contained in the
definitions of Eligible Accounts, Eligible Fixed Assets or
Eligible Inventory, and change and/or establish reserves (such
reserves to be standard and customary for facilities of this
nature) taken in respect of Eligible Inventory, Eligible Fixed
Assets and Eligible Accounts from time to time based upon the
results of any appraisals or other sources of information which
demonstrate in the Agent's reasonable judgment based on due
inquiry a change in the collectability of accounts receivable of
the Borrower or any Domestic Subsidiary and/or the marketability
or composition of inventory and fixed assets of the Borrower or
any Domestic Subsidiary and/or other market changes affecting the
value of accounts, inventory or fixed assets comprising the
Domestic Borrowing Base."
(h) The definition of "Eligible Accounts" is hereby amended by (i) deleting
clause (xv) contained therein, (ii) redesignating the existing clause (xvi)
contained therein as clause (xv) and (iii) redesignating the existing clause
(xvii) contained therein as clause (xvi).
(i) The definition of "Eligible Inventory" is hereby amended by deleting
clause (vi) contained therein and substituting in lieu thereof the following:
"(vi) it is not accounted for in the obsolescence reserve
maintained by any Credit Party or has not been determined by the
Agent in its sole discretion to constitute slow-moving
inventory;"
(j) The definition of "Extraordinary Receipts" is hereby amended by
deleting clause (a) contained therein and substituting in lieu thereof "(a)
INTENTIONALLY OMITTED,".
(k) The definition of "Fee Letter" is hereby deleted and replaced with the
following:
""FEE LETTER" means that certain Fee Letter, dated November 27,
2002, between the Borrower and Bank of America, N.A., as assignee
of Fleet Capital Corporation.
(l) The definition of "Fixed Charge Coverage Ratio" is hereby amended by
deleting clause (b)(i) contained therein and substituting in lieu thereof the
following:
"(i) the aggregate amount of Interest Expense for such Reference
Period (net of amortization during such Reference Period of
financing costs incurred in connection with this Agreement, the
Existing Credit Agreement, the Senior Subordinated Note Indenture
and the Senior Note Indenture) and"
(m) The definition of "Issuing Lender" is hereby deleted and replaced with
the following:
""ISSUING LENDER" means (a) Bank of America, N.A. and (b) solely
in connection with Letters of Credit outstanding on the First
Amendment Effective Date, Fleet National Bank."
(n) The definition of "LIBOR Rate" is deleted and replaced with the
following:
"LIBOR RATE" means, for any Interest Period with respect to a
LIBOR Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or
other commercially available source providing quotations of BBA
LIBOR as designated by the Agent from time to time) at
approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period, for Dollar deposits
(for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period divided by a number equal
to 1.00 minus the Eurocurrency Reserve Rate. If such rate is not
available at such time for any reason, then the "LIBOR Rate" for
such Interest Period shall be the rate per annum determined by
the Agent to be the rate at which deposits in Dollars for
delivery on the first day of such Interest Period in same day
funds in the approximate amount of the LIBOR Rate Loan being
made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of
America 's London Branch to major banks in the London interbank
eurodollar market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of such
Interest Period.
(o) The definition of "Revolving Credit Notes" is hereby amended be
deleting the period contained therein and substituting in lieu thereof the
following:
", as such promissory notes may be amended and restated from time
to time."
(p) The definition of "Senior Subordinated Note Documents" is hereby
amended by deleting the period contained therein and substituting in lieu
thereof the following:
"; PROVIDED that, after the repayment in full of the Existing
Senior Subordinated Notes and the issuance of the Additional
Senior Subordinated Notes, "Senior Subordinated Note Documents"
shall mean the Additional Senior Subordinated Note Documents."
(q) The definition of "Senior Subordinated Note Indenture" is hereby
amended by deleting the period contained therein and substituting in lieu
thereof the following:
"; PROVIDED that, after the repayment in full of the Existing
Senior Subordinated Notes and the issuance of the Additional
Senior Subordinated Notes, "Senior Subordinated Note Indenture"
shall mean the Additional Senior Subordinated Note Indenture."
(r) The definition of "Senior Subordinated Notes" is hereby deleted and
replaced with the following:
""SENIOR SUBORDINATED NOTES" means the Existing Senior
Subordinated Notes; PROVIDED that, after the repayment in full of
the Existing Senior Subordinated Notes and the issuance of the
Additional Senior Subordinated Notes, "Senior Subordinated Notes"
shall mean the Additional Senior Subordinated Notes.
(s) The definition of "Special Counsel" is hereby amended by deleting the
reference to "Fleet Capital Corporation" contained therein and substituting in
lieu thereof a reference to "Bank of America, N.A.".
(t) The definition of "Total Revolving Credit Commitment" is hereby amended
by adding the following sentence at the end of such definition:
"On the First Amendment Effective Date, the Total Revolving
Credit Commitment is $65,000,000."
(u) The following definitions are hereby added to Section 1.1 of the Credit
Agreement and inserted in correct alphabetical order:
""ADDITIONAL SENIOR SUBORDINATED NOTES" means the Borrower's
senior subordinated notes to be issued pursuant to the Additional
Senior Subordinated Indenture, on terms and conditions
(including, without limitation, subordination provisions)
satisfactory to the Agent, as the same shall, subject to the
terms and conditions of this Agreement, be amended, supplemented
or otherwise modified and in effect from time to time.
"ADDITIONAL SENIOR SUBORDINATED NOTE DOCUMENTS" means the
Additional Senior Subordinated Note Indenture, the Additional
Senior Subordinated Notes and all other documents, instruments
and agreements executed and delivered in connection with the
Additional Senior Subordinated Notes, in each case, in form and
substance satisfactory to the Agent, as the same shall, subject
to the terms and conditions of this Agreement, be amended,
supplemented or otherwise modified and in effect from time to
time.
"ADDITIONAL SENIOR SUBORDINATED NOTE INDENTURE" means the
Indenture relating to the Additional Senior Subordinated Notes,
in form and substance satisfactory to the Agent, as the same
shall, subject to the terms and conditions of this Agreement, be
amended from time to time.
"ADDITIONAL SENIOR SUBORDINATED NOTES" means the Borrower's
senior subordinated notes to be issued pursuant to the Additional
Senior Subordinated Indenture, on terms and conditions
(including, without limitation, subordination provisions)
satisfactory to the Agent, as the same shall, subject to the
terms and conditions of this Agreement, be amended, supplemented
or otherwise modified and in effect from time to time.
"EXISTING SENIOR SUBORDINATED NOTES" means the Borrower's 8-1/2%
senior subordinated notes due 2008 issued pursuant to the Senior
Subordinated Note Indenture, as the same shall, subject to the
terms and conditions of this Agreement, be amended, supplemented
or otherwise modified and in effect from time to time.
"FIRST AMENDMENT EFFECTIVE DATE" means April 29, 2005.
"OPERATING LEASES" means leases under which any Credit Party or
any of its Subsidiaries is the lessee or the obligor, other than
capital leases."
3. AMENDMENT TO TERM LOAN. Section 2.2 of the Credit Agreement is hereby
amended by adding the following new clause (f) immediately following clause (e)
contained therein:
"(f) On the First Amendment Effective Date, (i) the aggregate
outstanding principal amount of the Term Loans (equivalent to
$5,321,428.60) shall be converted into an equivalent amount of
Revolving Loans, owing to each of the Lenders in accordance with
their respective Commitment Percentages and (ii) the Borrower
shall pay to the Agent for the PRO RATA accounts of the Lenders
all interest accrued to such date on the Term Loans."
4. AMENDMENTS TO DOMESTIC LETTERS OF CREDIT AND FOREIGN LETTERS OF CREDIT.
(a) Section 2.4(a)(i)(a) of the Credit Agreement is hereby amended by
deleting the amount "$12,000,000" contained therein and substituting in lieu
thereof the amount "$20,000,000".
(b) Section 2.4(a)(ii)(a) of the Credit Agreement is hereby amended by
deleting the amount "$5,000,000" contained therein and substituting in lieu
thereof the amount "$10,000,000".
(c) Section 2.4(b) of the Credit Agreement is hereby amended by (i)
deleting the amount "$12,000,000" contained therein and substituting in lieu
thereof the amount "$20,000,000" and (ii) deleting the amount "$5,000,000"
contained therein and substituting in lieu thereof the amount "$10,000,000".
5. AMENDMENTS TO PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS; COLLECTION.
(a) Section 2.7(b)(iv) of the Credit Agreement is hereby amended by
deleting the amount "$5,000,000" contained therein and substituting in lieu
thereof the amount "$10,000,000".
(b) Section 2.7(g) of the Credit Agreement is hereby amended by deleting
the reference to "2.7(d)" contained therein and substituting in lieu thereof a
reference to "2.7(e)".
(c) Section 2.7 of the Credit Agreement is hereby amended by adding the
following new clause (h) immediately following clause (g) contained therein:
"(h) SUSPENSION OF SECTIONS 2.7(C) AND (D). Commencing on the
First Amendment Effective Date, the provisions contained in
Sections 2.7(c) and (d) shall be inoperative until the Agent, in
its sole discretion and upon notice to the Borrower, reinstates
such provisions."
6. AMENDMENT TO PREPAYMENT OF LOANS.
(a) Section 2.8(a) of the Credit Agreement is hereby amended by adding the
following immediately after the first sentence contained therein:
"Each such prepayment shall be accompanied by the payment of
accrued interest on the principal prepaid to the date of
prepayment and shall be applied, in the absence of instruction by
the Borrower, first to the principal of Base Rate Loans and then
to the principal of LIBOR Rate Loans. Each partial prepayment
shall be allocated among the Lenders, in proportion, as nearly as
practicable, to the respective unpaid principal amount of each
Lender's Revolving Credit Note, with adjustments to the extent
practicable to equalize any prior repayments not exactly in
proportion."
(b) Section 2.8(c)(ii) of the Credit Agreement is hereby amended by
deleting the text "and corresponding increase in the Domestic Prepayment
Reserve" contained therein and adding a period after the word "Commitments".
7. AMENDMENT TO FEES.
(a) Section 2.9(b)(x) of the Credit Agreement is hereby amended by deleting
the text "one-half of one percent (1/2%)" contained therein and substituting in
lieu thereof the text "the Applicable Margin then in effect and applicable to
the column "Unused Fees" set forth in the definition of "Applicable Margin""
(b) Section 2.9(c)(iii) of the Credit Agreement is hereby amended by
deleting the proviso contained therein and substituting in lieu thereof the text
"PROVIDED that any such fees accruing after the date on which the Revolving
Credit Commitment terminates shall be payable on demand and any fronting fee
with respect to documentary Letters of Credit shall be payable upon the issuance
of such documentary Letter of Credit.
8. AMENDMENT TO CHANGE IN DOMESTIC BORROWING BASE, CANADIAN BORROWING BASE
AND TERM LOAN BORROWING BASE. Section 2.13 of the Credit Agreement is hereby
amended by deleting the first sentence contained therein and substituting in
lieu thereof the following sentence:
"The Domestic Borrowing Base and the Canadian Borrowing Base
shall be determined monthly (or at such other interval as may be
specified pursuant to subsection 7.1) by the Agent by reference
to the Borrowing Base Certificate, commercial finance and
collateral audit reports, the Collateral Update Certificate,
Accounts Receivable/Loan Reconciliation Report and/or appraisals
or reappraisals of Eligible Fixed Assets delivered to the Lenders
and the Agent pursuant to subsection 7.1 together with other
information obtained by or provided to the Agent."
9. AMENDMENT TO COLLECTION OF PROCEEDS OF ACCOUNTS RECEIVABLE. Section
4.3(a) of the Credit Agreement is hereby amended by adding the following new
sentence at the end of such Section 4.3(a):
"Notwithstanding the foregoing, (a) commencing on the First
Amendment Effective Date, the provisions contained in clause
(iii)(B) above shall be inoperative until the Agent, in its sole
discretion and upon notice to the Borrower, reinstates such
provisions and (b) until the Agent reinstates such provisions,
all amounts in such accounts shall be transferred to the
Borrower's operating account maintained with the Cash Management
Bank."
10. AMENDMENTS TO AFFIRMATIVE COVENANTS.
(a) Section 7.1(f) of the Credit Agreement is hereby further amended by
adding the following text at the end of such Section 7.1(f):
"PROVIDED that, the Borrower shall only be required to deliver
such Borrowing Base Certificate pursuant to this clause (f) in
the event that (i) Domestic Excess Availability, as evidenced by
the most recent Borrowing Base Certificate delivered pursuant to
Section 7.1(g), is less than $12,000,0000 or (ii) Domestic Excess
Availability is less than $15,000,000 but not less than
$12,000,000, as evidenced by the most recent Borrowing Base
Certificate delivered pursuant to Section 7.1(g), and the
Domestic Excess Availability has not, as evidenced by an updated
Borrowing Base Certificate, been increased to an amount equal to
or greater than $15,000,000 within ten (10) days of delivery of
such original Borrowing Base Certificate; PROVIDED further that,
in the event that the Domestic Excess Availability, as evidenced
by the Borrowing Base Certificates delivered pursuant to Section
7.1(g) for any three consecutive months following the occurrence
of an event described in clause (i) or (ii) above, is at or above
$15,000,000, such requirement to deliver a Borrowing Base
Certificate pursuant to this clause (f) shall terminate (it being
understood that such requirement to deliver a Borrowing Base
Certificate pursuant to this clause (f) shall be reinstated in
the event that the circumstances described in clause (i) or (ii)
are repeated);"
(b) Section 7.1(g) of the Credit Agreement is hereby amended by deleting
clause (i) contained therein and substituting in lieu thereof the following:
"(i) a Borrowing Base Certificate in the form attached hereto as
EXHIBIT B-1 setting forth the Domestic Borrowing Base and
Canadian Borrowing Base, together with an updated list of
Eligible Fixed Assets as of such month ended and a list of all
Hedging Agreements entered into by any Credit Party during such
month,"
(c) Section 7.1(j) of the Credit Agreement is hereby amended by deleting
the text contained therein and substituting in lieu thereof the following:
"INTENTIONALLY OMITTED."
(d) Section 7.6 of the Credit Agreement is hereby amended by deleting the
first PROVISO contained therein and substituting in lieu thereof the following:
"PROVIDED that, so long as no Default has occurred and is
continuing, (x) all such visits shall be on reasonable prior
notice, at reasonable times during regular business hours and (y)
the Agent shall not conduct commercial finance examinations more
than once in any 365 day period; PROVIDED that, the Agent shall
have the right to conduct commercial finance examinations once in
any 180 day period while the Credit Parties are required to
deliver a Borrowing Base Certificate pursuant to Section 7.1(f);
and PROVIDED further that after the occurrence and during the
continuance of any Default, the Agent and the Lenders may visit
at any reasonable times."
(e) Section 7.9 of the Credit Agreement is hereby amended by adding the
following text immediately following the text "Existing Indebtedness":
", a portion of the Senior Subordinated Notes (solely to the
extent permitted pursuant to Section 8.6(e))"
11. AMENDMENT TO NEGATIVE COVENANTS.
(a) Section 8.1 of the Credit Agreement is hereby amended by deleting the
word "and" at the end of clause (e) and adding the following new clauses
immediately following clause (f):
"(g) Indebtedness of any Credit Party or any Subsidiary of a
Credit Party under any Operating Lease; PROVIDED that the
aggregate amount of such Indebtedness of the Credit Parties and
their Subsidiaries shall not exceed $6,000,000 annually; and
(h) Indebtedness of the Borrower in the aggregate principal
amount not to exceed $125,000,000, evidenced or incurred under
the Additional Senior Subordinated Note Documents; PROVIDED that
(i) all principal and interest of the Existing Senior
Subordinated Notes shall be contemporaneously repaid in full and
(ii) such Indebtedness is designated as "Senior Indebtedness"
under the Additional Senior Subordinated Note Indenture."
(b) Section 8.5 of the Credit Agreement is hereby amended by deleting
clause (b) contained therein and substituting in lieu thereof the following:
"(b) The Credit Parties will not, and will not permit any of
their Subsidiaries to, enter into any Hedging Agreement, other
than Hedging Agreements entered into in the ordinary course of
business on a non-speculative basis to hedge or mitigate risks to
which the Credit Parties are exposed in the conduct of their
business or the management of their liabilities."
(c) Section 8.6 of the Credit Agreement is hereby amended by adding the
following new clause (e):
"(e) (i) prepayments of principal of the Senior Subordinated
Notes so long as (A) no Default shall have occurred or be
continuing and no Default shall be caused thereby, (B) the Credit
Parties shall be in compliance with each of the financial
covenants set forth in Section 8.10 for the most recent
applicable period ended prior to such payment, (C) the Fixed
Charge Coverage Ratio for the period of two (2) quarters ending
prior to such payment, calculated on a pro forma basis giving
effect to the making of such payment of principal (as if such
payment were made on the first day of such period and including
the amount of such payment in clause (b)(ii) of the definition of
"Fixed Charge Coverage Ratio" in the calculation of Fixed Charge
Coverage Ratio as if they were scheduled or required payments)
shall not be less than 1.25:1.00, and the Credit Parties shall
deliver a Compliance Certificate prior to such payment
demonstrating such Fixed Charge Coverage Ratio, (D) Domestic
Excess Availability, calculated on a pro forma basis after giving
effect to such payment shall not be less than $15,000,000, and
the Agent shall have received a Borrowing Base Certificate
demonstrating the same, (E) the number of days of average
outstandings for the Borrower's accounts payable over the three
(3) month period prior to such payment shall not exceed thirty
five (35), (F) the Agent shall have received evidence that the
Credit Parties have obtained all necessary consents from the
holders of the Senior Notes with respect to such payment and
shall have received a legal opinion, covering such matters
relating to such payment as the Agent shall reasonably request,
(G) the Credit Parties shall have closed a tender offer with
respect to all Existing Senior Subordinated Notes that remain
outstanding after giving effect to such payment, and (H) the
aggregate amount of such payments shall not be greater than
$155,000,000 (provided that the aggregate amount of the
prepayments of the Existing Senior Subordinated Notes shall not
exceed $145,000,000); and PROVIDED that not more than $30,000,000
of such payments may be funded with the proceeds of Revolving
Credit Loans; or (ii) prepayments of principal of the Existing
Senior Subordinated Notes so long as the conditions set forth in
(i)(A)-(F) are satisfied and the aggregate amount of such
payments shall not be greater than $30,000,000; and PROVIDED that
not more than $30,000,000 of such payments may be funded with the
proceeds of Revolving Credit Loans."
(d) Section 8.10(a) of the Credit Agreement is hereby amended by deleting
the text contained therein and substituting in lieu thereof the following:
"INTENTIONALLY OMITTED."
(e) Section 8.10(b) of the Credit Agreement is hereby amended by deleting
the table contained therein and substituting in lieu thereof the following:
------------------------------------------- -----------------------
PERIOD RATIO
------------------------------------------- -----------------------
June 30, 2004 and each fiscal quarter 4.25 to 1.00
ending thereafter
------------------------------------------- -----------------------
(f) Section 8.10(d) of the Credit Agreement is hereby amended by deleting
the text contained therein and substituting in lieu thereof the following:
"INTENTIONALLY OMITTED."
(g) Section 8.15 of the Credit Agreement is hereby amended by deleting the
text contained therein and substituting in lieu thereof the following:
"INTENTIONALLY OMITTED."
12. AMENDMENT TO EVENTS OF DEFAULT. Section 9.1(p) of the Credit Agreement
is hereby amended by deleting the text contained therein and substituting in
lieu thereof the following:
"INTENTIONALLY OMITTED."
13. NEW AGENT.
(a) Article 10 of the Credit Agreement is hereby amended by adding the
following new section immediately following Section 10.11:
"10.12. ASSIGNMENT TO BANK OF AMERICA. Effective on the First
Amendment Effective Date, (a) Fleet hereby resigns as Agent and
Fleet National Bank hereby resigns as Issuing Lender (except with
respect to the Letters of Credit outstanding on such date) and
Cash Management Bank (b) the Required Lenders hereby appoint Bank
of America, N.A. as Agent, Issuing Lender and Cash Management
Bank and (c) Fleet and Fleet National bank hereby assigns to, and
Bank of America, N.A. hereby assumes, all of the rights
(including, without limitation, all liens and security interests
granted to Fleet in its capacity as Agent) and obligations of
Fleet as Agent and Fleet National Bank as Issuing Lender and Cash
Management Bank. The Credit Parties agree to continue to maintain
all current accounts with Fleet National Bank with Fleet National
Bank and Fleet National Bank will continue to comply with any
instructions from the Agent without the further consent of the
Credit Parties. The Credit Parties and the Lenders authorize Bank
of America, N.A. to take all actions and file all such documents
and statements to reflect such assignment.
(b) Section 10.6 of the Credit Agreement is hereby amended by deleting the
period at the end of the second sentence contained therein and substituting in
lieu thereof the following:
"; PROVIDED that if the Agent shall notify the Credit Parties and
the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring
Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents and (2) all
payments, communications and determinations provided to be made
by, to or through the Agent shall instead be made by or to each
Lender directly, until such time as the Required Lenders appoint
a successor Agent as provided for above in this Section. Any
resignation by Bank of America as Agent pursuant to this Section
shall also constitute its resignation as Issuing Lender. Upon the
acceptance of a successor's appointment as Agent hereunder, (a)
such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring Issuing
Lender, (b) the retiring Issuing Lender shall be discharged from
all of its respective duties and obligations hereunder or under
the other Loan Documents, and (c) the successor Issuing Lender
shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or
make other arrangements satisfactory to the retiring Issuing
Lender to effectively assume the obligations of the retiring
Issuing Lender with respect to such Letters of Credit.
14. AMENDMENT TO NOTICES. Subsection 11.1(b) of the Credit Agreement is
hereby deleted in its entirety and replaced with the following:
"(b) if to the Agent, to Bank of America, N.A., One East Avenue,
10th Floor, Mail Stop NY7-144-10-03, Xxxxxxxxx, XX 00000,
Attention: Xxxxxxx X. X'Xxxxx Telephone no. 000-000-0000 and Fax
no. 000-000-0000, with a copy to Xxxxxxx XxXxxxxxx LLP, 000
Xxxxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxxx,
Telephone no. (000) 000-0000 and Fax no. (000) 000-0000;
15. AMENDMENT TO SCHEDULES. (a) SCHEDULE 1.1-(A) to the Credit Agreement is
hereby deleted and replaced with SCHEDULE 1.1-(A) attached hereto, (b) SCHEDULE
1.1-(B) to the Credit Agreement is hereby deleted and replaced with SCHEDULE
1.1-(B) attached hereto, and (c) SCHEDULE 2.1 of the Credit Agreement is hereby
deleted and replaced with SCHEDULE 2.1 attached hereto.
16. AMENDMENT TO EXHIBITS. (a) EXHIBIT B-1 to the Credit Agreement is
hereby deleted and replaced with EXHIBIT B-1 attached hereto and (b) EXHIBIT B-2
to the Credit Agreement is hereby deleted and replaced with EXHIBIT B-2 attached
hereto
17. AFFIRMATION AND ACKNOWLEDGMENT. The Borrower hereby ratifies and
confirms all of its Obligations to the Lenders, including, without limitation,
the Loans, the Notes and the other Loan Documents, and the Borrower hereby
affirms its absolute and unconditional promise to pay to the Lenders all
Obligations under the Credit Agreement as amended hereby. Each Guarantor hereby
acknowledges and consents to this Amendment and agrees that its Guarantee
remains in full force and effect, and each such Guarantor confirms and ratifies
all of its Guarantee obligations under the Credit Agreement and the other Loan
Documents. The Borrower and the Guarantors hereby confirm that the Obligations
or Guarantee obligations under the Credit Agreement, as the case may be, are and
remain secured pursuant to the Credit Agreement and the Collateral Documents and
pursuant to all other instruments and documents executed and delivered by the
Borrower or such Guarantor, as security for the Obligations or Guarantee
obligations under the Credit Agreement, as the case may be.
18. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants to the Lenders as follows:
(a) The execution and delivery by the Borrower and the Guarantors of this
Amendment, and the performance by the Borrower and the Guarantors of their
obligations and agreements under this Amendment and the Credit Agreement as
amended hereby, are within the corporate authority of the Borrower and the
Guarantors and, have been duly authorized by all necessary corporate proceedings
on behalf of the Borrower and the Guarantors, and do not contravene any
provision of law, statute, rule or regulation to which the Borrower or any
Guarantor is subject or the Borrower's or any Guarantor's charter, other
incorporation papers, by-laws or any stock provision or any amendment thereof or
of any agreement or other instrument binding upon the Borrower or any Guarantor.
(b) This Amendment and the Credit Agreement as amended hereby constitute
legal, valid and binding obligations of the Borrower and the Guarantors,
enforceable in accordance with their respective terms, except as limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors' rights or general principles
of equity and except to the extent that availability of the remedy of specific
performance or injunctive relief is subject to the discretion of the court
before which any proceeding therefor may be brought.
(c) Other than approvals or consents which have been obtained, no approval
or consent of, or filing with, any governmental agency or authority is required
to make valid and legally binding the execution, delivery or performance by the
Borrower of this Amendment, the Credit Agreement, as amended hereby, or any
pledge described herein.
(d) The representations and warranties contained in ss.5 of the Credit
Agreement are true and correct at and as of the date made and as of the date
hereof, except to the extent of changes resulting from transactions contemplated
or permitted by the Credit Agreement and the other Loan Documents and changes
occurring in the ordinary course of business that singly or in the aggregate are
not materially adverse, or to the extent that such representations and
warranties relate expressly to an earlier date.
(e) The Borrower has performed and complied in all material respects with
all terms and conditions herein required to be performed or complied with by it
prior to or at the time hereof, and as of the date hereof, after giving effect
to the provisions hereof, there exists no Event of Default or Default.
19. RATIFICATION, ETC. Except as expressly amended or waived hereby, the
Credit Agreement, the other Loan Documents and all documents, instruments and
agreements related thereto are hereby ratified and confirmed in all respects and
shall continue in full force and effect. This Amendment and the Credit Agreement
shall hereafter be read and construed together as a single document, and all
references in the Credit Agreement or any related agreement or instrument to the
Credit Agreement shall hereafter refer to the Credit Agreement as amended by
this Amendment.
20. EFFECTIVENESS. This Amendment shall become effective as of the date
first written above upon the satisfaction of each of the following conditions,
in each case in a manner satisfactory in form and substance to the Agent:
(a) this Amendment signed by the Borrower, the Guarantors, the Agent and
the Lenders;
(b) the Agent shall have received a certificate from the Borrower
containing (i) a representation from the Borrower that the Indebtedness of the
Borrower incurred under the Credit Agreement (as amended hereby) is permitted
under the Senior Note Documents and the Senior Subordinated Note Documents and
(ii) a calculation, in form and substance satisfactory to the Agent, evidencing
compliance (after giving effect to this Amendment) with Section 4.03(b)(1) of
the Senior Note Indenture;
(c) the Agent shall have received a favorable written opinion (i) from
Xxxxxxxx Xxxxx LLP, special counsel to the Borrower and Yale Industrial
Products, Inc. covering such matters relating to this Amendment and the
transactions contemplated hereby as the Agent shall reasonably request and (ii)
Xxxxxxx Xxxx LLP covering such matters relating to the Senior Notes and the
Senior Subordinated Notes as the Agent shall reasonably request;
(d) the Agent shall have received such other items, documents, agreements,
items or actions as the Agent may reasonably request, including, without
limitation, corporate authority documents and incumbency certificates of the
Borrower and Yale Industrial Products, Inc.;
(e) no Default or Event of Default shall have occurred and be continuing;
(f) the Borrower shall have paid all fees and expenses of the Agent in
connection with the preparation of this Amendment and the transactions
contemplated hereby, including, without limitation, the fees and expenses of
counsel to the Agent; and
(g) the Lenders shall have received from the Borrower fully executed
amended and restated revolving credit notes in favor of each Lender.
21. POST-CLOSING COVENANT. (a) Within thirty (30) days of the First
Amendment Effective Date, the Borrower shall deliver, or cause to be delivered,
(i) favorable written opinions from counsel to the Canadian Borrowers and Crane
Equipment & Service, Inc. covering such matters relating to this Amendment and
the transactions contemplated hereby as the Agent shall reasonably request and
(ii) corporate authority documents and incumbency certificates of the Canadian
Borrowers and Crane Equipment & Service, Inc. and (b) within forty-five (45)
days of the First Amendment Effective Date, the Borrower shall deliver, or cause
to be delivered, (i) favorable written opinions from counsel to Audubon Europe
S.A.R.L. covering such matters relating to this Amendment and the transactions
contemplated hereby as the Agent shall reasonably request and (ii) corporate
authority documents and incumbency certificates of Audubon Europe S.A.R.L.
22. COUNTERPARTS. This Amendment may be executed in several counterparts
and by each party on a separate counterpart, each of which when executed and
delivered shall be an original, and all of which together shall constitute one
instrument. In proving this Amendment it shall not be necessary to produce or
account for more than one such counterpart signed by the party against whom
enforcement is sought.
23. DELIVERY BY FACSIMILE. This Amendment, to the extent signed and
delivered by means of a facsimile machine, shall be treated in all manner and
respects as an original agreement or instrument and shall be considered to have
the same binding legal effect as if it were the original signed version thereof
delivered in person. At the request of any party hereto or to any such agreement
or instrument, each other party hereto or thereto shall re-execute original
forms thereof and deliver them to all other parties. No party hereto or to any
such agreement or instrument shall raise the use of a facsimile machine to
deliver a signature or the fact that any signature or agreement or instrument
was transmitted or communicated through the use of a facsimile machine as a
defense to the formation of a contract and each party forever waives such
defense.
24. MISCELLANEOUS PROVISIONS.
(a) Except as otherwise expressly provided by this Amendment, all of the
terms, conditions and provisions of the Credit Agreement and the other Loan
Documents shall remain the same. It is declared and agreed by each of the
parties hereto that the Credit Agreement, as amended hereby, shall continue in
full force and effect, and that this Amendment and the Credit Agreement shall be
read and construed as one instrument.
(b) This Amendment shall be construed according to and governed by the laws
of the Commonwealth of Massachusetts.
(c) Pursuant to Section 11.3 of the Credit Agreement, all costs and
expenses incurred or sustained by the Agent in connection with this Amendment,
including the fees and disbursements of legal counsel for the Agent in
producing, reproducing and negotiating this Amendment, will be for the account
of the Credit Parties whether or not this Amendment is consummated.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the undersigned have duly executed this
Amendment as of the date first set forth above.
BORROWER
COLUMBUS XXXXXXXX CORPORATION
By: /S/ XXXXX X. XXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President - Treasurer
CANADIAN BORROWERS
------------------
LARCO INDUSTRIAL SERVICES LTD
By: /S/ XXXXX X. XXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
COLUMBUS XXXXXXXX LIMITED
By: /S/ XXXXX X. XXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
GUARANTORS
----------
YALE INDUSTRIAL PRODUCTS, INC.
By: /S/ XXXXX X. XXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
CRANE EQUIPMENT & SERVICE, INC.
By: /S/ XXXXX X. XXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
AUDUBON EUROPE S.A.R.L.
By: /S/ XXXXXX X. XXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager
By: /S/ Romain Thillens
-------------------------------
Name: Romain Thillens
Title: Manager
BANK OF AMERICA, N.A.
as Administrative Agent
By: /S/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Agency Management Officer
BANK OF AMERICA, N.A.
as Lender, Issuing Lender, and Cash
Management Bank
By: /S/ Xxxxxxx X. X'Xxxxx
-------------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: Vice President
CHARTER ONE BANK, NATIONAL ASSOCIATION
By: /S/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
WACHOVIA CAPITAL FINANCE CORPORATION
(CENTRAL)
By: /S/ XXXXX XXXXXX
-------------------------------
Name: Xxxxx Xxxxxx
Title: Associate
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /S/ XXXXXX X. XXXXXXXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
XXXXXXX XXXXX CAPITAL, A DIVISION OF
XXXXXXX XXXXX BUSINESS FINANCIAL
SERVICES INC.
By: /S/ XXXXXX XXXXXXX
-------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
Acknowledged and Agreed by:
FLEET CAPITAL CORPORATION
By: /S/ XXXXXXX XXXXXXXXX
---------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /S/ XXXXXXX XXXXXXXXX
---------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Officer
